..... and even otherwise both products are at their nascent stages so that laissez-faire principles will settle the controversy. i empathies with the plaintiff. it has been using the trademark kesh nikhar for several decades and is obviously peeved that the defendant should pick on the word nikhar, which the plaintiff could as easily have chosen and exploited in the ..... . i am immediately reminded of the decision of the court of appeals in the `merit' and `nerit' controversy, where, despite the manufacture of one million cigarettes under the trademark nerit, the court declined protection since it was not convinced that this manufacture was with the intent to market this product, but rather for blocking the introduction of merit cigarettes ..... seat of manufacture of goods similar to his own......'17. learned counsel for the plaintiff had relied heavily on the following passage from the treatise of narayanan titled - law of trademarks and passing off:'8.69. factual distinctiveness. distinctiveness is not necessarily an inherent or innate quality; it can be acquired. where the primary signification of the word is descriptive ..... injunctions. it was their lordships opinion that it would be impermissible for the civil court to go into the question of `validity' or `distinctiveness' of the plaintiff's trademark as these issue would properly be decided in the rectification proceedings. the hon'ble supreme court further observed that the case could well be disposed off 'by considering whether there .....

..... infringement action is based on invasion of the statutory right. the issues arise in this action are whether the plaintiff is a proprietor of the trademark and whether the defendant's mark is identical or similar to trademark of the plaintiff. in an infringement action the question of deception or confusion will not arise. (d) in an infringement action, defendant is restrained ..... reliance upon the judgment kellogg company v. pravin kumar bhadabhai 1996 ptc 187. 13. in kellogg company v. pravin kumar bhadabhai (supra), the dispute pertained to the trademark, emphasis being on trade dress. it was the case of the kellogg company in that case that it was selling flakes with cartons which described the cartons as kellogg flakes. the respondent pravin ..... the plaintiffs. in any case, the said allegations, according to the defendant, were irrelevant as the defendant was not using the trademark 'pony' or any other trademark which may be identical and/or deceptively similar to this registered trademark of the plaintiffs. it is stated that the defendants are the originators, owners and first adopters in the cartons and cards for ..... to dispose of this application of the plaintiff for injunction. 5. the defense to the suit by the defendant is that the defendant was carrying on the business under the trademark/label entitled 'v.r.' with the device of swan and the numerals '555' since 1989 openly, regularly, continuously, exclusively and extensively which they had bona fidely and honestly .....

..... the plaintiffs. moreover, defendant no. 1 has also been restrained from manufacturing, selling or offering for sale, medicinal preparation and allied products using trademark 'vicas' or any other trademark which might be deceptively similar to trademark 'vicks' of the plaintiffs.2, the facts giving rise to the litigation, as stated by the plaintiffs in their plaint, in a nutshell, ..... company of plaintiff no. 1, is manufacturing the medicinal preparations including cough drops under the trademark 'vicks' in india since 1971. trademark 'vicks' has been registered under the provisions of the trade and merchandise mark act, 1958 (hereinafter referred to as the trademark act'). the said mark has been registered at regn. no. 328355 in class v in respect of pharmaceutical, sanitary ..... hereinabove, the suit has been filed by the plaintiffs with a prayer for a declaration that the defendants are not entitled to use the trademark 'vicas' and/or any other mark similar to the plaintiffs' trademark 'vicks' and any other artistic work similar to the artistic work of the plaintiffs and the defendants and their agents, servants etc. be ..... and therefore, the suit ought not to have been entertained. according to him, different suits ought to have been filed for ventilating grievances under the provisions of the trademark act, copyright act and for an action for passing off.8. the learned advocate has also advanced several technical objections pertaining to the procedural aspects. it has been .....

..... kishan : air1973bom313 .28. for all the reasons given above, it is clear that the suit is based on infringement of statutory rights under the trademarks act, it is also based upon the common law principles of tort applicable to passing-off actions. the suit is not for enforcement of any rights ..... dissolution dated 16-11-1974 that moolchand, - the father of the partners of the 1st plaintiff firm and the 2nd plaintiff- became proprietor of the trademark for the whole of india (except west bengal). that right devolved on the plaintiffs on the death of moolchand. therefore, it was contended that the ..... the view of the high court by contending that the suit for injunction was based upon two rights, one being statutory under the trademarks act arising out of prior registration of trademark and alternatively, the suit was also ^ based on the common law right available in * a passing-off action. the suit ..... in violation of the common law and contractual rights of the plaintiff.on these grounds, defendants are to be restrained by permanent injunction from using the trademark and a sum of rs. 6 lakhs is payable as damages.5. the defendants, as already stated, have filed the application under order 7, ..... -joint proprietors. the latter three formed a partnership in 1983 and were running a shop in chandni chowk, new delhi selling various goods under the abovesaid trademark of haldiram bhujia wala. in the meantime, on 10-10-77. mool chand's brother sri r. l. aggarwal (husband of kamla devi) and .....

..... the impugned order by falling back upon provisions of section 12(3) of the act. he claimed that registrar had passed it on the basis of 'honest concurrent use' of trademark by respondent. 5. a perusal of the order impugned shows that registrar had proceeded on a different wave-length altogether. he had found that respondent was a prior user of ..... the bone of contention between the parties. both sides are claiming it for their rice which they are selling in india and australia. 2. respondent applied for registration of this trademark (word & device) before registrar on 30.8.89 and appellate filed his opposition to it on 27.6.96. respondents' application was allowed but appellant's opposition rejected by impugned ..... had passed it in ignorance of section 55 of the trademarks act which, according to him, provided by a legal fiction that application of a trademark in india for goods to be exported would constitute a use of such trademark in india and that registrar was obliged to examine whether the otherwise identical trademark was likely to create deception and confusion to honest and ..... the mark and had registered it in australia and that provi-sions of sections 11 and 12(1) of the act would not operate against him as the act applied only within .....

..... essential feature is not to be by ocular test alone, it is impossible to exclude consideration of the sound of words forming part of the whole of the mark. (kerly, law of trademarks and trade names. 11th entitled. 1983 para 14.21).26. it is no answer to a charge of infringement - as contrasted with a passing off action - that the defendant's ..... , goodwill and confidence of public. the defendant has been doing the business under the name and style of ashika incense inc. the 1st defendant has been applying the plaintiff's trademark eenadu fraudulently on the carton of agarbathis manufactured and sold by him, he has been infringing the plaintiff's copyright in respect of the artistic script eenadu deliberately, consciously, dishonestly ..... a eenadu television. the newspaper and the television use the name eenadu, which is written in a distinctive and novel artistic design. it gained sufficient commercial goodwill. eenadu is the trademark of the plaintiff which owns the newspaper and satellite television. it also owns a copyright in the distinctive and novel artistic script. thus, it is the case of the plaintiff ..... goods, the application shall include a statement to that effect and shall be accompanied by a certificate from the registrar of trademarks referred to in section 4 of the trade and merchandise marks act, 1958 (43 of 1958), to the effect that no trademark identical with or deceptively similar to such artistic work has been registered under that act in the name of, or .....

..... the decision of the bombay high court. the same question arose in the case reported in air 1953 sc 357. that was a case under the trademarks act. a decision was given by the registrar of trademarks. as against that an appeal was preferred before the single judge of the high court, the single judge decided the matter and against that an .....

..... the decision of the bombay high court. the same question arose in the case reported in air 1953 sc 357. that was a case under the trademarks act. a decision was given by the registrar of trademarks. as against that an appeal was preferred before the single judge of the high court, the single judge decided the matter and against that an .....

..... and colour combination and this is allegedly exclusively advertised and depicted in colours in various printed medias. it is alleged that the goods of the plaintiffs being sold under the trademarks 'castrol', 'castrol gtx', 'castrol gtx 2' and 'castrol crb' have become distinctive of the plaintiffs and are exclusively identified with the goods of the plaintiff and with none- ..... sale, advertising directly or indirectly, dealing in multigrade engine oil, lubricants or any other allied and cognate goods under the trademark 'castrol gtx' and 'castrol crb' or any other trademark which is identical or deceptively similar to the registered trademarks of the plaintiffs; they are also restrained by a decree of injunction from selling, advertising directly or indirectly in multigrade engine ..... registered user of the said trademark as well. the mark 'gtx' and 'gtx 2' have been used by the plaintiffs in conjunction with the trademark 'castrol' in respect of engine and multi-grade engine oils. the plaintiffs are also marketing their another product under the ..... about rs. 15 crores in advertising and publishing their products in india. plaintiff no. 1 is also the registered proprietor of the trademark 'castrol gtx' in class 4 in(respect of industrial oils and greases. the said trademark was registered in 1985 and the registration is still subsisting in the name of plaintiff no. 1. plaintiff no. 2 is the .....

..... that it is a product of the appellant-company. therefore, the suit was laid seeking permanent injunction restraining the respondents from using the registered trademark or any other trademark deceptively similar to the appellant's trademark and copy right. the appellant also sought for a mandatory injunction to deliver to the appellant all cartons, packages etc., for the destruction there ..... features is not to be by ocular test alone; it is impossible to exclude consideration of the sound of words forming part or the whole of the mark. (kerly, law of trademarks and trade names, 11th ed. 1983, para 14, 21).25. with regard to essential features in respect of phonetic or visual similarities, the supreme court observed as ..... supreme court in kaviraj pandit durga dutt sharma v. navaratna pharmaceutical laboratories, : [1965]1scr737 , laid down the distinguishing features between the passing off action and infringement of trademark. it observed thus :'the other ground of objection that the findings are inconsistent really proceeds on an error in appreciating the basic differences between the causes of action and right ..... .1 of 1995 dated 28-9-1998. the appellant is the plaintiff in the suit, the suit was filed seeking permanent injunction restraining the defendants from infringing the registered trademark 'shalimar' of the plaintiff by selling, marketing or offering for sale edible oil products bearing the name 'shalimar' on containers, labels, wrappers or using any name identical .....